Hindmarsh v NSW Ministry of Health - [2019] NSWCATAD 30 - NSWCATAD 2019 case summary — Zoe

NSWNSWCATAD

Hindmarsh v NSW Ministry of Health

[2019] NSWCATAD 30

NCAT Administrative and Equal Opportunity|2019-02-04

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2019-02-04

Source

Original judgment source is linked above.

Judgment (11 paragraphs)

[1]

REASONS FOR DECISION

Tragically, on 31 July 2014, Paul Hindmarsh, a patient in the Eloura West Mental Health Unit at Shellharbour Hospital, assaulted and killed a fellow patient, Joseph Gumley, with whom he shared a room. Mr Hindmarsh was later found not guilty of murder due to mental illness. He is now detained as a forensic patient under the supervision of the Mental Health Review Tribunal.
The applicant in these proceedings, Dr Michael Hindmarsh, is Paul Hindmarsh's father. Understandably, Dr Hindmarsh is very upset by the circumstances which led his son to, in his words, become a murderer. Dr Hindmarsh is seeking information relevant to the care and treatment of his son prior to the incident in order to understand what triggered his son's behaviour. Dr Hindmarsh is also seeking access to the information as he wishes to bring legal action against those whom he believes are responsible for what occurred.
On 18 September 2017 Dr Hindmarsh sought access under the Government Information (Public Access) Act 2009 (GIPA Act) to a report on his son by the NSW Chief Psychiatrist. The Ministry of Health identified a report on a review conducted on 4 August 2014 at Eloura West Observation Unit, Illawarra Shoalhaven Local Health District by Associate Professor Scott Clark, Acting Chief Psychiatrist and Marc Reynolds, Manager Systems Management, MHDAO, NSW Ministry of Health as falling within the ambit of Dr Hindmarsh's request.
The Ministry decided to provide partial access to the report and it was released to Dr Hindmarsh with some information redacted. Dr Hindmarsh sought review of that decision by the Information Commissioner and, on 28 March 2018, the Information Commissioner recommended that the Ministry make a new decision under the GIPA Act. Before making a new decision, the Ministry took steps to ascertain whether Paul Hindmarsh was capable of giving consent to the release of his personal health information contained in the report and, if so, whether he consented to giving his father access to that information. Mr Hindmarsh was assessed as being capable of providing consent but did not wish his father to have access to his information.

[4]

"Could reasonably be expected to"

The considerations against disclosure set out in the table to s 14 of the GIPA Act and the examples of considerations in favour of disclosure in s 12 have the requirement that disclosure of the information could reasonably be expected to have the nominated effect.
The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words: ... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.
In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]: "[25] … The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC."
The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42].

[9]

Health information

The HRIP Act regulates the manner in which organisations deal with "health information". "Health information" is defined in s 6 of the HRIP Act to mean: (a) personal information that is information or an opinion about: (i) the physical or mental health or a disability (at any time) of an individual, or (ii) an individual's express wishes about the future provision of health services to him or her, or (iii) a health service provided, or to be provided, to an individual, or (b) other personal information collected to provide, or in providing, a health service…
I am satisfied that some of the redacted information concerning Paul Hindmarsh contained in the report is "health information" as it is information about his physical and mental health and about health services provided to him. This information includes details of medications prescribed for or taken by him.
Schedule 1 to the HRIP sets out the Health Privacy Principles (HPPs). HPP 11 states that an organisation that holds health information must not disclose the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected unless certain circumstances apply. Relevantly for this case, the information can be disclosed where the person to whom the information relates has consented to the disclosure of the information for that secondary purpose (cl 11(1)(a)). As set out above, Paul Hindmarsh has not consented to the release of his health information.
Disclosure is also permitted where the secondary purpose is directly related to the primary purpose and the individual would reasonably expect the organisation to disclose the information for the secondary purpose (cl 11(1)(b)). Release of Mr Hindmarsh's health information under the GIPA Act is not directly related to the purpose for which the information was collected, namely a review of the Eloura West Observation Unit following the death of Mr Gumley.
In addition, disclosure is permitted if there are compassionate reasons for doing so and disclosure is limited to the extent reasonable for those compassionate reasons. This can only occur of the individual is incapable of giving consent (cl 11(1)(g)). Mr Hindmarsh has been assessed as being capable of giving his consent to the release of the information but has expressly stated he does not wish his father to be provided with the information.
None of the circumstances which would permit release of Mr Hindmarsh's health information without a contravention of HPP 11 therefore apply.

[10]

Applying the public interest test

Having established the public interest considerations in favour of disclosure of the information and public interest considerations against disclosure, my task is to weigh those considerations to determine whether there is an overriding public interest against disclosure.
The arguments made by Dr Hindmarsh, particularly in the context of what occurred at the Eloura West Observation Centre on 31 July 2014, that the public ought to be provided with information about the operation of the health system and its treatment of patients, is a very strong factor which would favour release of the information. It is important that the public be able to access such information and that appropriate legal action be taken if warranted.
The taking of civil proceedings against an agency is, however, a very different action to seeking to be provided with access to information under the GIPA Act. When access to information is sought under the GIPA Act, that Act governs whether the information can be released and the considerations may well be different to those that apply in legal proceedings.
Dr Hindmarsh is the father of Paul Hindmarsh and therefore has a legitimate interest in the information which he wishes to obtain. I note, however, that Dr Hindmarsh has not had any personal contact with his son for some time.
In this case, under the GIPA Act the public interest considerations against disclosure in cl 3(a) and (b) apply. Disclosure of the redacted information about Paul Hindmarsh could reasonably be expected to reveal his personal information. Disclosure of the information would contravene HPP11 of the HRIP Act as it concerns Mr Hindmarsh's health information.
I attach significant weight to the fact that the information sought is information about Mr Hindmarsh's health. Health information in a patient's medical record is sensitive information and, in most circumstances, there would be a very strong public interest in non-disclosure of such information (Khoo v South Western Local Health District [2015] NSWCATAD 183 at [81]). This is particularly the case where, as here, the patient has expressly objected to the release of the information.
I am of the view that, on balance, the public interest considerations in favour of disclosure do not outweigh the considerations against disclosure and there is an overriding public interest against disclosure of the redacted information contained in the report. Accordingly, it is my view that the respondent's decision to refuse access to that information is the correct and preferable decision. The decision should therefore be affirmed.